Citation Nr: 0327684
Decision Date: 10/16/03 Archive Date: 10/28/03
DOCKET NO. 01-00 108 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Washington,
DC
THE ISSUES
1. Whether new and material evidence has been submitted to
reopen a claim for service connection for a chronic, acquired
low back disorder.
2. Entitlement to an increased rating for residuals of a
left knee fracture, with arthritis, currently evaluated as 10
percent disabling.
3. Entitlement to a compensable rating for residuals of a
fracture of the fourth metacarpal of the right hand.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Veteran
ATTORNEY FOR THE BOARD
Martin F. Dunne, Counsel
INTRODUCTION
The veteran served on active duty from February 1978 to
February 1981.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a February 2000 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Washington, D.C., which granted a 10 percent rating for the
left knee disability; denied a compensable rating for the
residuals of a fracture of the fourth metacarpal of the right
hand; and service connection for a low back disability on the
basis that new and material evidence had not been submitted
warranting reopening that claim.
Additional evidence was submitted and, in January 2002, the
RO determined that the evidence in support of the application
to reopen the claim of service connection for a low back
disability was new and material, the claim was reviewed on a
de novo basis, and subsequently denied on the merits. The
veteran pursued his appeal, to include requesting a
disability rating in excess of 10 percent for his left knee
disability and for a compensable rating for the fracture of
his fourth metacarpal on the right hand.
The veteran testified at a personal hearing, which was held
at the Board in Washington D.C., in April 2003, before the
undersigned. During the hearing, the veteran requested
entitlement to service connection for a right knee disorder,
claimed as secondary to his service-connected left knee
disability. The Board notes that he had made a similar
request in his notice of disagreement, received in July 2000.
However, inasmuch as no development of that issue has been
made, that issue is being referred to the RO for appropriate
adjudication.
Before proceeding to the merits of the case currently before
the Board, the Board must first address the RO's January 2002
merits denial of service connection for a low back
disability. Under 38 U.S.C.A. § 7104(a) (West 1991), all
questions in a matter subject to a decision by the Secretary
shall be subject to one review on appeal to the Board. In
the instant case, the Board must initially determine whether
it has jurisdiction to proceed by assessing the question of
whether the veteran has presented new and material evidence
sufficient to reopen his claim of service connection for a
low back disorder because doing so goes to the Board's
jurisdiction to reach the underlying claim of service
connection and adjudicating it on a de novo basis. See
Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996); Marsh
v. West, 11 Vet. App. 468, 471 (1998); Smith (Irma) v. Brown,
10 Vet. App. 330, 332 (1997). Accordingly, the Board has
recharacterized that issue on appeal as whether new and
material evidence has been submitted to reopen the claim of
service connection for a low back disorder.
The certified increased rating issues are addressed in the
remand portion of this decision.
FINDINGS OF FACT
1. In a June 1994 rating decision, the RO denied service
connection for lumbar strain; he was notified of the decision
and appraised of his appellate rights; an appeal was not
taken; and the June 1994 RO decision became final.
2. The evidence associated with the claims file since the
RO's June 1994 decision is relevant and probative and, when
viewed in conjunction with the evidence previously of record,
is so significant that it must be considered in order to
fairly decide the merits of the claim for service connection
for a low back disorder.
CONCLUSIONS OF LAW
1. The RO's June April 1996 decision denying the claim for
entitlement to service connection for a back disorder is
final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104,
20.204, 20.302, 20.1103 (2003).
2. New and material evidence sufficient to reopen the
veteran's claim for entitlement to service connection for a
low back disorder has been submitted subsequent to the RO's
June 1994 final decision; the requirements to reopen the
claim have been met. 38 U.S.C.A. § 5108 (West 2002);
38 C.F.R. § 3.156 (2003).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Board notes that during the pendency of this appeal, the
Veterans Claims Assistance Act of 2000 (VCAA), was signed
into law. This liberalizing law is applicable to this
appeal. To implement the provisions of the law, the VA
promulgated regulations codified at 38 C.F.R. §§ 3.102,
3.156(a), 3.159, 3.326(a). The Act and implementing
regulations essentially eliminate the requirement that a
claimant submit evidence of a well-grounded claim, and
provides that VA will assist a claimant in obtaining evidence
necessary to substantiate a claim but is not required to
provide assistance to a claimant if there is no reasonable
possibility that such assistance would aid in substantiating
the claim. It also includes new notification provisions.
The amendments to 38 C.F.R. § 3.156(a), 3.159(c) and
3.159(c)(4)(iii) apply to any claim to reopen a finally
decided claim received on or after August 29, 2001. As the
present appeal of the denial of service connection for a back
disorder was initiated prior to that date, it will be decided
under the older version of 38 C.F.R. § 3.156, as detailed
below.
In addition, it was noted in the VCAA that, with respect to
previously disallowed claims, "[n]othing in (38 U.S.C.A. §
5103A) shall be construed to require the Secretary to reopen
a claim that has been disallowed, except when new and
material evidence is presented or secured, as described in
(38 U.S.C.A. § 5108)." See 38 U.S.C.A. § 5103A(f) (West
2002). Therefore, the recent change to the law has not
modified the requirement that a previously denied claim may
not be reopened and readjudicated unless, and until, there
has been a finding that new and material evidence has been
submitted. Thus, it is necessary that the case be
adjudicated initially by the Board on the issue of whether
new and material evidence is of record to reopen the issue of
entitlement to service connection for a chronic low back
disorder. See Barnett, 83 F.3d at 1383; Marsh, 11 Vet. App.
at 471; Smith (Irma), 10 Vet. App. at 332. If it is
determined that such evidence has been presented, the claim
will be reopened, and any required development would be
undertaken. See Elkins v. West, 12 Vet. App. 209 (1999).
As the favorable outcome explained below does not prejudice
the veteran as to the issue of whether new and material
evidence has been submitted to reopen the claim for service
connection for a low back disorder, no additional
information, evidence, or discussion of VCAA compliance is
necessary pertaining to that issue. See Bernard v. Brown, 4
Vet. App. 384 (1993).
In a June 1994 rating decision, the RO denied the veteran
entitlement to service connection for lumbar strain. The
bases for the denial were that a back disorder was not shown
in the service medical records, and that mechanical low back
pain was first shown years after his separation from service
and there was no medical nexus between then diagnosed
mechanical low back pain and service. The veteran was
notified of the decision and apprised of his appellate
rights. He did not file an appeal and the June 1994 rating
decision became final. See 38 U.S.C.A. § 7105; 38 C.F.R.
§§ 3.104(a), 20.302, 20.1103. However, if new and material
evidence is presented or secured with respect to a claim that
has been disallowed, the Secretary shall reopen the claim and
review the former disposition of the claim. See 38 U.S.C.A.
§ 5108; Manio v. Derwinski, 1 Vet. App. 140, 145 (1991).
As defined by regulation, new and material evidence means
evidence not previously submitted to agency decision makers,
which bears directly and substantially upon the specific
matter under consideration, which is neither cumulative nor
redundant, and which by itself or in connection with the
evidence previously assembled is so significant that it must
be considered in order to fairly decide the merits of the
claim. See 38 C.F.R. § 3.156(a). In addition, for the
purpose of determining whether a case should be reopened, the
credibility of the evidence added to the record is to be
presumed. See Justus v. Principi, 3 Vet. App. 510, 513
(1992). There is no requirement, however, that in order to
reopen a claim, that the new evidence, when viewed in the
context of all the evidence, both new and old, create a
reasonable possibility that the outcome of the case on the
merits would be changed. See Hodge v. West, 155 F.3d 1356
(Fed. Cir. 1998) (expressly rejecting the standard for
determining whether new and material evidence had been
submitting sufficient to reopen a claim set forth in Colvin
v. Derwinski, 1 Vet. App. 171 (1991)). Instead, the United
States Court of Appeals for the Federal Circuit (Federal
Circuit), reviewing the history of 38 C.F.R. § 3.156(a),
including comments by the Secretary submitted at the time the
regulation was proposed, concluded that the definition
emphasized the importance of a complete record rather than a
showing that the evidence would warrant a revision of a
previous decision. Id. at 1363.
The provisions of 38 U.S.C.A. § 5108 require a review of all
evidence submitted by a claimant since the previously
disallowed claim in order to determine whether a claim must
be reopened and readjudicated on the merits. See Evans v.
Brown, 9 Vet. App. 273, 282-83 (1993). If the Board's
decision is favorable to the claimant, the claim must be
reopened and decided on the merits. See Glynn v. Brown, 6
Vet. App. 523, 528-29 (1994).
Since the June 1994 RO decision is the last final decision of
record, the evidence that has been associated with the file
since then is the evidence that must be considered in
connection with the new and material evidence inquiry
pertaining to entitlement to service connection for a
chronic, acquired psychiatric disorder.
Evidence associated with the claims folder since the RO's
June 1994 rating decision consists of correspondence from the
veteran and his testimony presented at the Board hearing;
numerous VA medical treatment records for various periods
from August 1998 to January 2002; VA examination reports,
including x-ray reports; and numerous Social Security
Administration medical records.
The Social Security Administration medical records include
the report of an April 1999 orthopedic examination noting x-
ray evidence of L5-S1 joint space, consistent with
degenerative joint disease. The diagnosis presented was
degenerative joint disease of the lumbosacral spine. During
the veteran's February 2001 VA examination, he underwent an
MRI, which revealed a small broad disc bulge at L5-S1, with
superimposed right foraminal disc herniation, with mass
effect on the transversing S1 nerve root. The diagnosis
presented was back pain, with nerve root impingement,
secondary to herniated disc. These diagnoses have not been
presented previously, and currently show back disorder of
intervertebral disc syndrome.
The recently received evidence consists of medical diagnoses
that are both new and material, and bear directly and
substantially on the issue of entitlement to service
connection for a chronic, acquired low back disorder.
Accordingly, the Board finds that the newly submitted
evidence, in combination with other evidence of record, does
meet the regulatory standard of evidence "which by itself,
or in connection with evidence previously assembled, is so
significant that it must be considered in order to fairly
decide the merits of the claim." See 38 C.F.R. § 3.156(a).
Having determined that new and material evidence has been
added to the record, the issue of entitlement to service
connection for a chronic, acquired low back disorder is
reopened. See 38 C.F.R. § 3.156(a).
ORDER
To the extent that the Board has determined that new and
material evidence has been submitted to reopen the claim of
entitlement to service connection for a chronic, acquired low
back disorder, the appeal is granted.
REMAND
Since the issue of entitlement to service connection for a
chronic, acquired low back disorder is reopened, that issue
is subject to the provisions of the recently enacted VCAA.
The Act and implementing regulations essentially eliminate
the requirement that a claimant submit evidence of a well-
grounded claim, and provides that VA will assist a claimant
in obtaining evidence necessary to substantiate a claim, but
is not required to provide assistance to a claimant if there
is no reasonable possibility that such assistance would aid
in substantiating the claim. It also includes new
notification provisions. Further, that issue must be
determined on a de novo basis taking into consideration all
the evidence of record.
A review of the claims folder reveals that the veteran was
advised of the VCAA by Board letter dated in September 2002;
pertinent provisions of the VCAA were provided the veteran
and his representative in the Supplemental Statement of the
Case, issued in January 2002; and VA notified the veteran of
the evidence it had and was attempting to get in a letter
dated in November 2001. However, it appears that the
information provided is not sufficient to inform the veteran
of the VCAA, and the potential impact this law might have on
his claim. This violation of due process must be addressed
before the Board can undertake any action in this claim.
The United States Court of Appeals for Veterans Claims has
consistently held that, if VA has failed to specifically
discuss the required notice to the veteran of the information
and evidence necessary to substantiate his claim, to indicate
what portion of any such information or evidence is to be
provided by which party, and failed to discuss whether the
documents that it referenced, or any other document in the
record, VA did not satisfy the standard erected by the VCAA.
That is, VA has failed to discuss adequately the amended duty
to notify with respect to the veteran's claim for service-
connected benefits. Specifically, VA failed to inform the
veteran which evidence VA will seek to provide and which
evidence the veteran was to provide, citing Quartuccio v.
Principi, 16 Vet. App. 183, 187 (2002). Further, if VA
failed to discuss the notice requirement, VA did not consider
all applicable provisions of law and provide an adequate
statement of reasons or bases for its decision. See Charles
v. Principi, 16 Vet. App. 370, 373-74 (2002).
In a decision promulgated on September 22, 2003, Paralyzed
Veterans of America v. Secretary of Veterans Affairs, No. 02-
7007, -7008, -7009, -7010 (Fed. Cir. Sept. 22, 2003), the
United States Court of Appeals for the Federal Circuit
invalidated the 30-day response period contained in 38 C.F.R.
§ 3.159(b)(1) as inconsistent with 38 U.S.C.§ 5103(b)(1).
The Court made a conclusion similar to the one reached in
Disabled Am. Veterans v. Secretary of Veterans Affairs, 327
F.3d 1339, 1348 (Fed. Cir. 2003) (reviewing a related Board
regulation, 38 C.F.R. § 19.9). The court found that the 30-
day period provided in § 3.159(b)(1) to respond to a VCCA
duty to notify is misleading and detrimental to claimants
whose claims are prematurely denied short of the statutory
one-year period provided for response. Therefore, since this
case is being remanded for additional development or to cure
a procedural defect, the RO must take this opportunity to
inform the appellant that notwithstanding the information
previously provided, a full year is allowed to respond to a
VCAA notice.
As for the veteran's claims of increased rating for residuals
of a left knee fracture, including arthritis, and for a
compensable rating for residuals of a fracture of the fourth
metacarpal of the right hand, the Board notes that the most
recent VA examination specifically to evaluate current status
of his service-connected disabilities was in January 2000,
which is well-over three years old. When the veteran claims
that his conditions are worse than when originally rated, and
the available evidence is too old for an adequate evaluation
of the veteran's current conditions, VA's duty to assist
includes providing him with a new examination. See
Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993); Proscelle
v. Derwinski, 2 Vet. App. 629, 632 (1992). Under the
circumstances, the Board believes that the veteran should
undergo another VA examination in order to determine the
nature and severity of the service-connected disabilities
currently on appeal.
Likewise, the Board notes that the veteran is receiving VA
outpatient treatment for his service-connected disabilities;
however, the most recent VA treatment records in the claims
file are dated in January 2001. It is important to note that
records generated by VA facilities that may have an impact on
the adjudication of a claim are considered constructively in
the possession of VA adjudicators during the consideration of
that claim, regardless of whether those records are
physically on file. See Dunn v. West, 11 Vet. App. 462, 466-
67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992).
Hence, any VA treatment records subsequent to January 2001
need to be obtained and incorporated in the veteran's claims
file.
As part of VA's duty to assist the veteran with his reopened
claim for entitlement to service connection for chronic,
acquired low back disorder, the Board would like to obtain a
nexus opinion as to whether it is at least as likely as not
that any currently diagnosed back disorder is etiologically
related to his military service, or on a secondary basis as
proximately due to or the result of a service-connected
disability, here claimed as due to service-connected left
knee disability, under 38 C.F.R. § 3.310(a). Under this
section, a grant of service connection may be granted for a
disability caused by a service-connected disability and for
the degree of additional disability resulting from
aggravation of a nonservice-connected disability by a
service-connected disability. See Allen v. Brown, 7 Vet.
App. 439, 448 (1995).
In view of the foregoing, this case is remanded for the
following:
1. The RO should contact the veteran and
request the names and addresses of all
medical care providers, VA and private,
who treated him for residuals of a left
knee fracture, including arthritis in the
knee, and for residuals of a fracture of
the fourth metacarpal of the right hand.
After securing the necessary release, the
RO should obtain these records not
already in the claims file and have them
associated with the claims folder. All
attempts to procure records should be
documented in the file. If the RO cannot
obtain records identified by the veteran,
a notation to that effect should be
inserted in the file. The veteran and
his representative are to be notified of
unsuccessful efforts in this regard.
2. The veteran should be afforded a VA
orthopedic examination to determine the
severity of the service-connected left
knee disability, including arthritis, and
fracture of the fourth metacarpal of the
right hand, as well as to determine a
definitive diagnosis of any low back
disorder found. All indicated tests and
studies are to be performed, to include
x-rays of the pertinent areas. Prior to
the examination, the claims folder must
be made available to the physician for
review of the case. A notation to the
effect that this record review took place
should be included in the report of the
examiner.
In examining the veteran's left knee,
fourth metacarpal of the right hand, and
lumbosacral spine, the orthopedic
examiner should indicate whether there is
functional loss due to pain, weakness,
fatigability, incoordination or pain on
movement of a joint, and whether there is
greater limitation of motion due to pain
on use, including use during flare-ups,
and report x-ray findings. The
orthopedic examiner is to review the
entire claims folder, to include the
veteran's service medical records, and
offer opinions as to: a) a diagnosis of
any low back disorder found; b) whether
it is at least as likely as not related
to a disease or injury noted in service;
c) if arthritis is noted, whether it is
at least as likely as not that the
arthritis was manifest to a degree of 10
percent within the year following the
veteran's separation from active military
service; c) if it is at least as likely
as not that a currently diagnosed low
back disorder is etiologically related to
a service-connected disability; and d)
if there is no etiological relationship,
whether it is at least as likely as not
that a service-connected disability
aggravates or permanently aggravated the
currently diagnosed low back disorder;
and, if so, e) the level of disability
that is attributable to such aggravation.
All examination findings, along with the
complete rationale for each opinion
expressed and conclusion reached, should
be set forth and incorporated with the
veteran's claims file.
3. The veteran must be given adequate
notice of the date and place of any
requested examination. A copy of all
notifications must be associated with the
claims folder. The veteran is hereby
advised that failure to report for a
scheduled VA examination without good
cause shown may have adverse effects on
his claim.
4. The RO should send the veteran a
letter explaining the VCAA, including the
duty to assist and notification provisions
contained therein. In doing so, the
letter should explain, what, if any,
information (medical or lay evidence) is
necessary to substantiate the claim of
entitlement to an increased rating for
left knee disability, for a compensable
rating for a fracture of the fourth
metacarpal of the right hand, and for
service connection for a low back
disorder. A general form letter, prepared
by the RO, not specifically addressing the
disabilities at issue, is not acceptable.
The letter should inform the veteran of
which portion of the information and
evidence is to be provided by the veteran
and which part, if any, VA will attempt to
obtain on behalf of the veteran.
5. The RO must review the claims file
and ensure that all notification and
development action required by
38 U.S.C.A. §§ 5102, 5103, and 5103A; and
38 C.F.R. § 3.159 are fully complied with
and satisfied, and that all requested
development has been completed (to the
extent possible) in compliance with this
REMAND. If any action is not undertaken,
or is taken in a deficient manner,
appropriate corrective action should be
undertaken. See Stegall v. West, 11 Vet.
App. 268 (1998).
6. Thereafter, the RO should readjudicate
this claim. If the benefits sought on
appeal remain denied, the veteran and his
representative should be provided a
supplemental statement of the case (SSOC).
The SSOC must contain notice of all
relevant actions taken on the claim for
benefits, to include a summary of the
evidence and applicable law and
regulations considered pertinent to the
issues currently on appeal. An
appropriate period of time should be
allowed for response.
The veteran has the right to submit additional evidence and
argument on the matters the Board has remanded to the
regional office. See Kutscherousky v. West, 12 Vet. App. 369
(1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West 2002) (Historical and Statutory
Notes). In addition, VBA's Adjudication Procedure Manual,
M21-1, Part IV, directs the ROs to provide expeditious
handling of all cases that have been remanded by the Board
and the Court. See M21-1, Part IV, paras. 8.43 and 38.02.
______________________________________________
RENÉE M. PELLETIER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs
YOUR RIGHTS TO APPEAL OUR DECISION
The attached decision by the Board of Veterans' Appeals (BVA or Board) is
the final decision for all issues addressed in the "Order" section of the
decision. The Board may also choose to remand an issue or issues to the
local VA office for additional development. If the Board did this in your
case, then a "Remand" section follows the "Order." However, you cannot
appeal an issue remanded to the local VA office because a remand is not a
final decision. The advice below on how to appeal a claim applies only to
issues that were allowed, denied, or dismissed in the "Order."
If you are satisfied with the outcome of your appeal, you do not need to do
anything. We will return your file to your local VA office to implement
the BVA's decision. However, if you are not satisfied with the Board's
decision on any or all of the issues allowed, denied, or dismissed, you
have the following options, which are listed in no particular order of
importance:
? Appeal to the United States Court of Appeals for Veterans Claims
(Court)
? File with the Board a motion for reconsideration of this decision
? File with the Board a motion to vacate this decision
? File with the Board a motion for revision of this decision based on
clear and unmistakable error.
Although it would not affect this BVA decision, you may choose to also:
? Reopen your claim at the local VA office by submitting new and
material evidence.
There is no time limit for filing a motion for reconsideration, a motion to
vacate, or a motion for revision based on clear and unmistakable error with
the Board, or a claim to reopen at the local VA office. None of these
things is mutually exclusive - you can do all five things at the same time
if you wish. However, if you file a Notice of Appeal with the Court and a
motion with the Board at the same time, this may delay your case because of
jurisdictional conflicts. If you file a Notice of Appeal with the Court
before you file a motion with the BVA, the BVA will not be able to consider
your motion without the Court's permission.
How long do I have to start my appeal to the Court? You have 120 days from
the date this decision was mailed to you (as shown on the first page of
this decision) to file a Notice of Appeal with the United States Court of
Appeals for Veterans Claims. If you also want to file a motion for
reconsideration or a motion to vacate, you will still have time to appeal
to the Court. As long as you file your motion(s) with the Board within 120
days of the date this decision was mailed to you, you will then have
another 120 days from the date the BVA decides the motion for
reconsideration or the motion to vacate to appeal to the Court. You should
know that even if you have a representative, as discussed below, it is your
responsibility to make sure that your appeal to Court is filed on time.
How do I appeal to the United States Court of Appeals for Veterans Claims?
Send your Notice of Appeal to the Court at:
Clerk, U.S. Court of Appeals for Veterans Claims
625 Indiana Avenue, NW, Suite 900
Washington, DC 20004-2950
You can get information about the Notice of Appeal, the procedure for
filing a Notice of Appeal, the filing fee (or a motion to waive the filing
fee if payment would cause financial hardship), and other matters covered
by the Court's rules directly from the Court. You can also get this
information from the Court's web site on the Internet at
www.vetapp.uscourts.gov, and you can download forms directly from that
website. The Court's facsimile number is (202) 501-5848.
To ensure full protection of your right of appeal to the Court, you must
file your Notice of Appeal with the Court, not with the Board, or any other
VA office.
How do I file a motion for reconsideration? You can file a motion asking
the BVA to reconsider any part of this decision by writing a letter to the
BVA stating why you believe that the BVA committed an obvious error of fact
or law in this decision, or stating that new and material military service
records have been discovered that apply to your appeal. If the BVA has
decided more than one issue, be sure to tell us which issue(s) you want
reconsidered. Send your letter to:
Director, Management and Administration (014)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
VA
FORM
JUN
2003
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CONTINUED
Remember, the Board places no time limit on filing a motion for
reconsideration, and you can do this at any time. However, if you also plan
to appeal this decision to the Court, you must file your motion within 120
days from the date of this decision.
How do I file a motion to vacate? You can file a motion asking the BVA to
vacate any part of this decision by writing a letter to the BVA stating why
you believe you were denied due process of law during your appeal. For
example, you were denied your right to representation through action or
inaction by VA personnel, you were not provided a Statement of the Case or
Supplemental Statement of the Case, or you did not get a personal hearing
that you requested. You can also file a motion to vacate any part of this
decision on the basis that the Board allowed benefits based on false or
fraudulent evidence. Send this motion to the address above for the
Director, Management and Administration, at the Board. Remember, the Board
places no time limit on filing a motion to vacate, and you can do this at
any time. However, if you also plan to appeal this decision to the Court,
you must file your motion within 120 days from the date of this decision.
How do I file a motion to revise the Board's decision on the basis of clear
and unmistakable error? You can file a motion asking that the Board revise
this decision if you believe that the decision is based on "clear and
unmistakable error" (CUE). Send this motion to the address above for the
Director, Management and Administration, at the Board. You should be
careful when preparing such a motion because it must meet specific
requirements, and the Board will not review a final decision on this basis
more than once. You should carefully review the Board's Rules of Practice
on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified
representative before filing such a motion. See discussion on
representation below. Remember, the Board places no time limit on filing a
CUE review motion, and you can do this at any time.
How do I reopen my claim? You can ask your local VA office to reopen your
claim by simply sending them a statement indicating that you want to reopen
your claim. However, to be successful in reopening your claim, you must
submit new and material evidence to that office. See 38 C.F.R. 3.156(a).
Can someone represent me in my appeal? Yes. You can always represent
yourself in any claim before VA, including the BVA, but you can also
appoint someone to represent you. An accredited representative of a
recognized service organization may represent you free of charge. VA
approves these organizations to help veterans, service members, and
dependents prepare their claims and present them to VA. An accredited
representative works for the service organization and knows how to prepare
and present claims. You can find a listing of these organizations on the
Internet at: www.va.gov/vso. You can also choose to be represented by a
private attorney or by an "agent." (An agent is a person who is not a
lawyer, but is specially accredited by VA.)
If you want someone to represent you before the Court, rather than before
VA, then you can get information on how to do so by writing directly to the
Court. Upon request, the Court will provide you with a state-by-state
listing of persons admitted to practice before the Court who have indicated
their availability to represent appellants. This information is also
provided on the Court's website at www.vetapp.uscourts.gov.
Do I have to pay an attorney or agent to represent me? Except for a claim
involving a home or small business VA loan under Chapter 37 of title 38,
United States Code, attorneys or agents cannot charge you a fee or accept
payment for services they provide before the date BVA makes a final
decision on your appeal. If you hire an attorney or accredited agent within
1 year of a final BVA decision, then the attorney or agent is allowed to
charge you a fee for representing you before VA in most situations. An
attorney can also charge you for representing you before the Court. VA
cannot pay fees of attorneys or agents.
Fee for VA home and small business loan cases: An attorney or agent may
charge you a reasonable fee for services involving a VA home loan or small
business loan. For more information, read section 5904, title 38, United
States Code.
In all cases, a copy of any fee agreement between you and an attorney or
accredited agent must be sent to:
Office of the Senior Deputy Vice Chairman (012)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
The Board may decide, on its own, to review a fee agreement for
reasonableness, or you or your attorney or agent can file a motion asking
the Board to do so. Send such a motion to the address above for the Office
of the Senior Deputy Vice Chairman at the Board.
VA
FORM
JUN
2003
(RS)
4597
Page
2